The Emerging Struggle over the Council’s Prerogatives

It seemed innocuous enough. In December last year, the UN General Assembly’s Third Committee adopted a short resolution taking note, as per normal practice, of the annual report of the Human Rights Council, but deferring consideration of one particular Council resolution ‘in order to allow time for further consultations thereon’. This additional wording, which was subsequently endorsed by the General Assembly in plenary, was the first example of its kind in the history of the Council.

Yet while the General Assembly’s decision to single-out a specific Council resolution and ‘defer consideration of and action’ thereon may appear innocuous, it in fact has worrying implications for the powers and prerogatives of the Council as laid down in its founding document, GA resolution 60/251.

Resolution 60/251 established the Council as the UN’s principal body ‘responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all’. But resolution 60/251 also made it clear that the Council would be ‘a subsidiary organ of the General Assembly’, rather than a main body of the UN (like the Security Council or the Economic and Social Council). In other words, while the Council retains the necessary prerogatives to fulfill its mandate as the UN’s lead body on human rights, it still ultimately reports to the General Assembly’s Third Committee.

The Third Committee’s decision to un-package parts of the Council’s work and second-guess its resolutions is a direct threat to this delicate system of institutional balance. If it were to become accepted practice it would undermine the Council’s prerogatives to such an extent as to call into question the reason for having a specialized Human Rights Council at all. At the very least, the situation raises the specter of having two Councils, one in Geneva and one in New York.

The coordination conundrum – a tale of two Councils?

The relationship between the Human Rights Council and the General Assembly Third Committee has never been straightforward. As the Council is a subsidiary organ covering much of the same material as the Third Committee, there has tended to be significant overlap between the outputs of the two bodies. So, for example, a resolution on torture will be negotiated and adopted at the Human Rights Council in Geneva, and then another resolution on torture will later be negotiated and adopted in New York, both in the same calendar year. In the last two years, around 50% of Third Committee resolutions dealing with human rights issues had a prima facie sister resolution in Geneva, over 40% had some degree of substantive overlap, and around 13% were functionally identical. Similar issues arise in the context of UN human rights Special Procedures. Of the 49 currently active Special Procedure mandates, 31 report to both the Council and the Third Committee.

This situation is already duplicative and wasteful in terms of resources. And yet it has muddled along because, at the very least, the two institutions have understood and respected each other’s responsibilities, strengths and prerogatives. December’s vote risks changing that.

The reason behind this new development was, at heart, political. The 2013 composition of the Council was such that many – mainly Western – delegations, together with international NGOs, saw an opportunity to secure progress on – or ‘push through’ – issues they deemed important. These issues included a number of resolutions related to freedom of association: one in March on human rights defenders, one in September on ‘civil society space’, and another in September on the issue of reprisals against those who cooperate with the UN. The first of these, while being a strong text, was eventually adopted by consensus. However, for states uneasy with the focus of these initiatives and the wording of the texts, the decision to follow the March resolution with two more in the same year, on very similar issues, was highly provocative. Yet these states did not have the votes in the Council to block or leverage significant amendments to the texts. They therefore determined to use the universal membership composition of Third Committee to block the September resolution on reprisals.

But the move to unpack the Council’s annual report was also reflective of the long-standing institutional tensions between the Council and the General Assembly’s Third Committee. While the Council is not yet a main body of the UN, it has increasingly been acting as one, becoming more dynamic and assertive in its actions and leadership. This sits uneasily with the idea of its subservience to the Third Committee, a point not lost on diplomats in New York. The issue is particularly significant in the context of the decision of states in 2011 to maintain the Council as a subsidiary organ, and in the context of the next review of the Council’s status due to begin after 2016.

Three key lessons should be drawn from this episode. First, the Third Committee’s December vote must not set a precedent (although some would say it already has). Second, it is imperative for states (and NGOs) to work together in Geneva in a spirit of compromise, cooperation and genuine dialogue (as per resolution 60/251) in order to secure consensus on all resolutions, including sensitive ones. And third, the vote highlights the discrepancy between human rights and the other two pillars of the UN: security and development. While the UN has a main body for security (the Security Council) and a main body for development (the Economic and Social Council), the Human Rights Council remains subsidiary. If states are serious about making human rights one of the UN’s three pillars in reality as well as in rhetoric, and thereby eliminating the current institutional confusion, then the next review of the Council’s status should move to elevate it to its rightful place as a UN main body.